Thank you.
I thank you for being here.
I studied Mr. Ménard's motion. He had me working all weekend on it, so, of course, I was unable to attend your convention. While I accept Mr. Ménard's comments regarding linguistic duality in Canada, I thought it would be wise to start by assessing the admissibility of this motion. I had some research done by the analysts at the Library of Parliament, who detected a problem.
Section 15 of the Charter is the reference we turn to for all grounds of discrimination. In Canada, grounds for discrimination could be national or ethnic origin, colour, religion, sex, age or mental or physical disability. Only in section 7(c) of the Republished Statutes of the Yukon and in section 10 of the Quebec Charter of Human Rights and Freedoms do we see reference made to language. Therefore, it is only pursuant to those statutes that language may be considered as grounds for discrimination in the case of an appointment. That is not the case for the Canadian Charter, which we are governed by.
We did, however, look into whether there had been cases which could make Mr. Ménard's motion admissible from a legal standpoint. We looked into the words "in particular" which are used in the Charter, and assessed whether any analogous grounds could make this motion, which is otherwise quite good, acceptable from a legal standpoint. Analogous grounds recognized by the courts are different from those I have just referred to. They are citizenship, matrimonial status, sexual orientation and place of residence.
Once I had completed this work, I had to go a bit further and look into whether any ruling had been made. To date in Canada, no ruling would allow us to accept the wording of Mr. Ménard's motion. In fact, if we were to be dealing in the general sense with public service employees, then perhaps there would be an issue. Indeed, jobs are classified as bilingual, given the fact that it is impossible for people who work directly with the public to use interpreters. You cannot always have an interpreter at the immigration counter. It would mean duplication of staff throughout Canada, in all provinces.
I then wondered whether there were exceptions. With respect to the ombudsman, Mr. Sullivan, I wondered what type of legislation these people were subject to and what the criteria were. I discovered that we were dealing with the terms and conditions of employment for full-time governor in council appointees. So, there is the Public Service Employment Act and the provisions which, through the governor- in-council, would affect the positions of deputy minister and above. Well, in their case, official language rules do not apply. I would have accepted Mr. Ménard's position without a second thought, but this problem is a hindrance.
Of course, I said to myself: perhaps there may be a small detail in the legislation which would settle this problem. I looked into the regulations of the act we have just referred to, but was unable to find anything at all. Official languages are referred to in section 4 of the act and regulations, but there is no loophole.
The only loophole I found was provided by the Liberals in 2005. They had too many problems to deal with. In May 2005, Mr. Rodriguez was Chair of the Official Languages Committee. This committee issued a report containing recommendation 13, which reads as follows:
The Committee recommends that the Privy Council Office require that those appointed to deputy minister positions meet the CBC requirements in the second official language.
The letter "C" represents the highest level of reading comprehension, the letter "B" the intermediate level for written communications, and the letter "C" the highest level for oral interaction in the second official language. The Liberals issued this recommendation, but they didn't implement it. They would have had the time to do so because in May 2005 the elections had not yet been called. They left the recommendation on hold, as they tend to do for certain things.
At the end of the day, the motion does not work. You cannot ask a government, of any stripe, to do something that is not allowed by the rules, including those created by the Liberals in 1968 at the time of the adoption of the Official Languages Act. This is not a recent problem, it dates back to 1968. The Liberals passed legislation, but they didn't think of everything. They have had 30 years to do so, but they did not.
I understand and I support the spirit of Mr. Ménard's motion, but I cannot support it in its current form. You cannot demand something which is a violation of rules. And you cannot ask for an appointment not to be made. That is a sovereign power, the power of the king, the power of government. You cannot ask it not to make an appointment. The government decides and is accountable to the public.
Well, that's it when it comes to the substance. With respect to the form, there is one other aspect which you should also consider. I cannot really speak to the English version of this motion, because of my level of fluency in English, but I did carefully read the French motion. The motion states:
Be it resolved that, through the chairman, the Committee write to the Minister of Justice to ask him not to make appointments of persons who do not have a working knowledge of French at the time of their appointment to strategic positions.
You cannot say "who do not have a working knowledge of French". If you're going to adopt a motion on official languages, it has to consider both languages, not one alone. If we want to claim to have equality, we should require both languages, in other words: "who do not have a working knowledge of both official languages" and not only "French".
As to the form, I would point out to Mr. Ménard that the Official Languages Act does not apply in Quebec. It applies in every other province except Quebec because we are excluded from its application.
That would mean that if, in Quebec, we were to appoint a unilingual anglophone to a position we could not, under the Quebec Charter, under our own laws, tell him not to sit or not to be appointed because the language criterion in Quebec is a grounds for discrimination. So, if I were to appoint someone who only spoke English, I could not discriminate against him for that. That is one issue with respect to the form.
Before we impose anything on people throughout Canada, we should see whether the issue would even apply in our own provinces. I would say no. I do not think you should accept the substance of this. I would recommend that the spirit of Mr. Ménard's motion be respected, I find it is quite appropriate, but the form and the use of this motion should not be accepted.
That is my opinion. I can say no more, because I have not studied this matter in any greater detail than that. Thank you.